Justice Tremblay-Lamer of the Federal Court rejected the application of Allan Adam on his own behalf and on behalf of the Athabasca Chipewyan First Nation’s (collectively referred to as “ACFN”) challenging two decisions made by the Government of Canada (“Crown”) pursuant to the Canadian Environmental Assessment Act (the “CEAA”): the first decision was an Order in Council made pursuant to section 52(4) of the CEAA that the Shell Canada Energy Jackpine Mine Expansion Project’s (the “Project”) significant adverse environmental effects were “justified in the circumstances”; and the second was the decision statement made by Respondent, the Minister of the Environment (“Minister”) pursuant to section 54 of the CEAA, which contained the binding conditions upon which the Project must proceed. The ACFN claimed that the Minister made these decisions in breach of its duties of consultation and accommodation.           

The Project is a proposed expansion of an existing open pit oil-sands mine by the Respondent, Shell Canada Limited (“Shell”) near Fort McMurray, Alberta. The ACFN is an Indigenous nation with Treaty 8 rights, upon whose traditional lands the Project would be implemented. This expansion of the pit would adversely affect the ACFN’s rights to hunting, fishing, and harvesting of animals and plants while also destroying a significant part of the Muskeg River.

Shell’s proposal triggered federal and provincial regulatory processes which require, amongst other things, environmental authorization under the CEAA. The Crown and Alberta decided to integrate these regulatory processes leading to the creation of the Joint Review Panel (the “Panel”). This Panel would conduct the required environmental assessment, consult with Indigenous nations and eventually present a report to the Minister with its recommendations.

The ACFN participated throughout this process. Initially, they met with Shell in pre-hearing consultations and contributed to Shell’s Environmental Impact Assessment. The ACFN was also involved at the Panel hearings, where they filed hundreds of pages of submissions, examined and cross-examined witnesses, and made final submissions.

The Panel’s report, issued on July 9, 2013, contained an extensive examination of the ACFN’s evidence and submissions. Ultimately, it concluded that the Project should be implemented, despite the adverse environmental effects:

“… the Project offered significant economic benefits and should not be delayed. In addition, the Project was likely to cause significant adverse environmental effects—some of them irreversible and inadequately mitigated—for the landscape, flora, fauna, and Indigenous peoples of the lands in question. The cumulative effects of this and other projects in the region, however, would likely result in significant harm to Aboriginal rights and the environment.”

To address the environmental concerns and Aboriginal wellbeing, the Panel’s report concluded with eighty-eight recommendations for the Project’s implementation.

After the report was issued, the ACFN continued consultations with the Crown and Environment Canada. Despite the ACFN’s continuous objections, the Minister accepted the Project as its likely adverse environmental effects were justified in the circumstances. 

As a preliminary matter, Shell asked the Federal Court to strike an affidavit filed by the Applicant, and Justice Tremblay-Lamer agreed the affidavit was inadmissible because it did not presents “facts within the deponent’s personal knowledge” as required by Rule 81(1) of the Federal Court Rules, but rather expert opinion on the decision statement and the Project’s conditions. The application by ACFN raised two issues:

  1. Whether the Crown breached their duty to consult the ACFN; and
  2. Whether the Crown breached their duty to accommodate the ACFN.

With regard to the standard of review, Justice Tremblay-Lamer of the Federal Court followed the decision in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 (“Haida”), and held that the Minister’s actions for both issues would be reviewed on the standard of reasonableness. Justice Tremblay-Lamer of the Federal Court, quoted Chief Justice Beverley McLachlin in Haida on what reasonable consultation and accommodation would entail:

“Perfect satisfaction is not required; the question is whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right in question” […]. The government is required to make reasonable efforts to inform and consult. This suffices to discharge the duty. [internal citation omitted].”

Further, Justice Tremblay-Lamer stated:   

Thus, the fact that the Crown could have done more to consult or accommodate the claimant does not render the Crown’s efforts unreasonable. Imperfections will not invite judicial review of an otherwise reasonable process. Accommodation “does not give Aboriginal groups a veto over” projects (Haida at para 48); rather, it balances their interests with broader political or societal ones.”

On the first issue regarding the Crown’s duty to consult, Justice Tremblay-Lamer stated:

The scope and context of the duty to consult will vary with the circumstances as was recognized in Delgamuukw v British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010 where Chief Justice Antonio Lamer explains at para 168:

[…] The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. […]”.

Further, the purpose of consultation is to maintain the honour of the Crown while attempting to effect reconciliation with Aboriginal peoples. This requires balancing societal and Aboriginal interests and resolving conflicts through “balance and compromise.” Here, the Crown had a “deep” duty to consult with the ACFN because the Project would destroy significant areas of traditional Aboriginal lands while also impinging on the First Nation’s culture and way of life.

The ACFN alleged that the Crown’s consultations were insufficient for several reasons. They claimed that the time for consultations was too brief and that the Crown had issued its decision before consultation was completed. Furthermore, the ACFN alleged that there was an insufficient degree of transparency as, amongst other things, the Crown did not disclose their proposed Project conditions or their advice to Cabinet when recommending approval of the Project. In sum, the Crown did not adequately respond to the ACFN’s concerns or sufficiently consider the negative cumulative effects of the Project.

Notwithstanding these claims, the Federal Court held that the Crown’s duty to consult was fulfilled to such an extent that Madam Justice Tremblay-Lamer failed “…to see what more could be done to ensure meaningful consultation.” There was no lack of transparency, as the Crown “shared information, replied to the ACFN’s correspondence, met the ACFN’s representatives, and made policy decisions in light of ACFN’s concerns.” Regarding the Minister’s advice to Cabinet, the ACFN had no right to this information because it was privileged. The ACFN had participated throughout the six year process and serious consideration was given to their submissions.

While the Crown’s conduct was not perfect, the Federal Court notes that “Minor omissions, however, do not gainsay the adequacy of consideration.” The steps taken were sufficient to discharge the Crown’s duty to consult in relation to the two decisions issued pursuant to the CEAA.

With regard to the second issue and the duty to accommodate, Justice Tremblay-Lamer of the Federal Court stated that Chief Justice McLachlin in Haida, explained the scope of the duty to accommodate, as follows:

“Balance and compromise are inherent in the notion of reconciliation.  Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.”

Further, assessing the scope of the duty to accommodate, “…requires a fact-driven analysis directed at reasonable balancing of conflicting interests so as to foster reconciliation.” While the duty to accommodate will require compromise, it does not require the Crown to grant an Aboriginal nation’s wishes.

The ACFN alleged that the Crown had a significant duty to accommodate as a result of the serious adverse effects of the Project, and that this was not fulfilled. They believed that the Crown had jurisdiction to act in this case, and that despite this jurisdiction, the Crown did not fulfil the ACFN’s recommendations. These recommendations included making conservation offsets a Project condition, providing funding for cultural maintenance, and better protecting woodland caribou.

The Federal Court concluded that the Crown had fulfilled its duty to accommodate, primarily by imposing a list of binding conditions on Shell and by committing to working with Alberta towards further accommodation:

“Owing to the consultation process, the Crown added numerous Project conditions and made other reasonable accommodations as well. The duty to accommodate does not guarantee Aboriginal groups everything that they wish to obtain. As the Supreme Court has repeatedly reminded us, Aboriginal groups must be flexible when discussing options for accommodation.” 

The Federal Court noted that the duty to accommodate did not require the Crown to adopt all 88 recommendations made by the Panel.

The Federal Court also addressed the jurisdictional issues that were present in this case.  Alberta has exclusive jurisdiction over most matters relating to the use of the lands and mineral rights in question and, as a result, a great number of the accommodations requested could only be granted by the Province. For example, the Crown could not make conservation offsets a Project condition as they lacked the jurisdiction to do so. Furthermore, the Crown could not implement the ACFN’s requests regarding woodland caribou because Alberta also has sole responsibility in this domain. Where the Crown did have jurisdiction, they took appropriate steps to accommodate the ACFN. For example, the Crown mitigated threats to Aboriginal culture by placing binding conditions on Shell and promising to work with Alberta on matters within provincial jurisdiction. 

Therefore, Madam Justice Tremblay-Lamer dismissed ACFN’s application upon finding that both the duty to consult and duty to accommodate had been fulfilled in order to minimize the Project’s adverse environmental effects, with costs to the Respondents Shell and the Minister.

http://www.canlii.org/en/ca/fct/doc/2014/2014fc1185/2014fc1185.html

Other Author

Isabella Mentina

Expertise

Aboriginal Law